Carson v. Chevron Chemical Co.
| Decision Date | 29 October 1981 |
| Docket Number | No. 52158,52158 |
| Parties | , 24 A.L.R.4th 258, 32 UCC Rep.Serv. 834 John CARSON, Plaintiff-Appellant, v. CHEVRON CHEMICAL COMPANY and Waits Homegas, Inc., Defendants-Appellees, and WAITS HOMEGAS, INC., Cross-Claimant/Appellant, v. Donald W. JOHNSON, Plaintiff-Appellee, and Collingwood Grain, Inc., Intervenor-Appellee. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
1. As a general rule, in the ordinary buyer-seller relationship, K.S.A. 84-2-607(3)(a) requires that notice of an alleged breach need be made only to the buyer's immediate seller in order for the buyer to be afforded a remedy.
2. An exception to the general rule stated above is where the buyer and the other parties to the manufacture, distribution and sale of the product are closely related, or where the other parties actively participate in the consummation of the actual sale of the product. In such a situation, as was presented here on appeal, notice of an alleged breach to such other parties is required pursuant to K.S.A. 84-2-607(3)(a).
3. Under the facts of this case, where the buyer primarily was purchasing a service from his immediate seller, and the product in question was used for its ordinary purpose, K.S.A. 84-2-315, the implied warranty of fitness for a particular purpose, is inapplicable.
4. Reliance is not an essential element of implied warranty under the Kansas Uniform Commercial Code.
5. The judgment of a trial court, if correct, is to be upheld, even though the trial court may have relied upon a wrong ground or assigned an erroneous reason for its decision.
6. It is within a trial court's discretion to exclude evidence which has little, if any, relevant, useful, evidentiary value.
7. Sufficient consideration exists when possible proceeds from a pending lawsuit are assigned to a party as security for a bona fide antecedent debt.
8. Under the facts of this case, when an assignment of the possible proceeds from a pending lawsuit has been made, the assignment is outside the statute of frauds, K.S.A. 33-106, since the parties to the pending suit could possibly settle the suit within the statutory one-year period.
9. The statute of frauds, K.S.A. 33-106, does not require that the consideration term be in writing, if other writings exist which satisfy the statute's requirement of a writing to evidence the agreement.
10. Under the facts of this case, where an assignment of proceeds from a pending lawsuit preceded a garnishment attempt on the same proceeds, the assignment has priority.
11. The mere fact that mutual judgments exist does not as a matter of right entitle a party to have one judgment set off against another. A setoff as between judgments is within the discretion of the trial court. Under the facts of this case, the trial court herein did not abuse its discretion.
Alexander B. Mitchell of Sargent, Klenda, Haag & Mitchell, Wichita, for plaintiff-appellant John Carson and plaintiff-appellee Donald W. Johnson.
Donald H. Humphreys, Great Bend, for cross-claimant/appellant Waits Homegas, Inc.
Robert L. Baer of Cosgrove, Webb & Oman, Topeka, for defendant-appellee Chevron Chemical Co.
Christopher A. Randall and Eldon L. Boisseau of Turner & Boisseau, Chartered, Wichita, for defendant-appellee Waits Homegas, Inc.
Michael R. O'Neal and H. Newlin Reynolds of Hodge, Reynolds, Smith, Peirce & Forker, Hutchinson, for intervenor-appellee Collingwood Grain, Inc.
Before ABBOTT, P. J., and PARKS and SWINEHART, JJ.
This appeal is actually two separate appeals stemming from what was originally one lawsuit. In 1977 Donald W. Johnson, John Carson, and Aubrey Price filed suit against Chevron Chemical Company and Waits Homegas, Inc., alleging breach of express and implied warranties arising out of the failure of a contact herbicide, Paraquat, to kill existing weeds and grasses, the consequence of which was the failure of the plaintiffs' 1976 no-till milo crops. By agreement of the parties and by order of the district court, the three plaintiffs' claims were tried separately. Plaintiff Carson appeals from the directed verdicts which ended his trial. Defendant Waits Homegas appeals from post-judgment orders concerning the proceeds from the judgments in the Johnson trial.
We will first consider plaintiff Carson's appeal from the order of the District Court of Kiowa County which directed verdicts on all counts against him in favor of defendants Chevron Chemical Company and Waits Homegas, Inc.
Carson raises the following issues on appeal: (1) whether the trial court erred in holding that Carson was barred from any remedy against Chevron for failing to give notice of the alleged breach of express and implied warranties as is required by K.S.A. 84-2-607 (3)(a); (2) whether the trial court erred in directing a verdict for Chevron on the issues of express warranty and implied warranty of fitness for a particular purpose; (3) whether the trial court erred in directing a verdict for Waits on the issues of express warranty and implied warranty of fitness for a particular purpose; (4) whether the trial court erred in refusing to admit into evidence the defendants' answers to certain interrogatories.
The facts in this case are necessarily detailed. According to the evidence presented by plaintiff Carson, Carson was a farmer in south central Kansas and had been engaged in farming most of his life. Chevron Chemical Company promoted and distributed a wide array of agricultural chemicals, including a contact herbicide known as Paraquat. Waits Homegas, Inc., was a retailer of agricultural chemicals, including Paraquat, and a custom applicator of such chemicals.
In 1973 Carson began managing Kinsley Farms, a 6,300 acre Edwards County farm using center-pivot irrigation. Carson had been utilizing the center-pivot irrigation method of farming since 1964. All of his experience since 1962 had been in sandy soils.
In 1975 Chuck Bolder, the area sales representative for Chevron, learned that Carson was interested in the concept of no-till farming. Bolder decided to meet with Carson and introduce him to Chevron's product, Paraquat, and to Chevron's program of no-till farming. Bolder met with Carson at Kinsley Farms, viewed some of the property, and noticed that the bulk of the property was sandy ground. Carson expressed a desire to adopt a farming practice which would stop the sand from blowing. Bolder knew at the time that one of the principal problems in that area was blowing sand. Bolder told Carson about the suitability of no-till farming with Paraquat on sandy soil. Bolder also told Carson that by substituting a contact herbicide, such as Chevron's Paraquat, for conventional plowing and tillage in the preparation of a seed bed, he would receive benefits such as moisture conservation, prevention of wind and water erosion, reduction in fuel expenses, reduction in machinery, and a considerable reduction in time and effort.
After hearing Bolder's sales pitch, Carson was interested in this no-till concept and decided that he would like to see a test plot of no-till corn using Paraquat. Bolder and Carson together selected one of the 130 acre irrigated circles that was fairly representative of the soils on the farm. Bolder arranged for a no-till planter while Carson contacted Mike Richard and Chuck Moss of Waits Homegas, Inc., to apply the herbicides. The test plot of 130 acres was planted with no-till corn in 1975 by Carson, and Waits Homegas sprayed the plot with Paraquat, along with the required residual herbicides. Both Carson and Richard of Waits Homegas monitored the crop's progress and observed a total kill of all existing weeds and grasses, and a good stand of corn with no tillage or cultivation of the soil.
Carson discussed the results with Richard, and Richard assured him that no-till was the way to farm in that type of sandy ground. Carson asked Richard about the suitability of no-till with other crops, including milo, to which Richard replied that he saw no reason why milo could not be planted no-till.
Immediately after the 1975 harvest of the no-till corn crop, Bolder approached Carson with the proposition of having Carson be a telephone consultant for Chevron, which would include telling people about his successful 1975 no-till corn crop, attending various growers' meetings, and attending a Chevron school in Iowa to learn more about no-till farming with Paraquat. Carson agreed to this proposition and told Bolder that he wanted to know more about no-till and Paraquat, and that he would gladly attend the Chevron school in Des Moines, Iowa. While at the Chevron school, Carson was given two of Chevron's pamphlets entitled "Getting Started with No-Till" and "There's Got to Be A Better Way."
A portion of "Getting Started with No-Till" contained the following statements:
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